Nat'l Aid Ass'n v. Brachter

• Decision Date: 01 July 1902
• Parties: NATIONAL AID ASS'N v. BRACHTER.
• Court: Nebraska Supreme Court

65 Neb. 378

91 N.W. 379

NATIONAL AID ASS'N

v.BRACHTER.

Supreme Court of Nebraska.

July 1, 1902.

Syllabus by the Court.

1. Where an application for a benefit certificate of membership in a mutual benefit association declares on its face that payment of a first assessment and registry fee is a condition precedent to membership and to the issuing of the certificate, and the by-laws contain the same provision, the applicant does not become a member and the certificate is not in force until such payments are actually made.

2. Evidence examined, and held that in this case there was no waiver of the time of payment.

3. Evidence examined, and held not sufficient to create an estoppel on the part of the association to defend against an action on the certificate.

4. Manual possession of the benefit certificate, in case it is in force and is a binding contract, is not necessary in order to maintain an action upon it.

5. Where the certificate is not in force, and its issuance and delivery are refused, possession of it obtained in an action of replevin before a justice of the peace does not satisfy the requirements of issuance and delivery, and the rights of the holder remain the same as they were before he obtained possession of it in that manner.

Commissioners' opinion. Department No. 2. Error to district court, Clay county; Stubbs, Judge.

Action by Samuel T. Brachter against the National Aid Association. Judgment for plaintiff. Defendant brings error. Reversed.David Overmeyer and F. J. Dunham, for plaintiff in error.

L. B. Stiner and Tibbetts Bros. & Morey, for defendant in error.

BARNES, C.

This action was commenced in the district court of Clay county against the National Aid Association by the defendant in error to recover the sum of $1,000 and interest on a joint beneficiary certificate alleged to have been issued by that association to the defendant in error and his deceased wife. The facts, all of which appear in the record, are as follows: Some time in October, 1898, one P. B. Stover, who was called an “organizer” for the association, came to Fairfield, Neb., and proceeded to organize a local lodge of that order. It appears that the association was a foreign corporation,--a mutual benefit association having a lodge plan, with ritualistic features and an insurance attachment. Stover induced quite a large number of persons at Fairfield and in that vicinity to sign a petition for a charter to organize a local lodge of the order, and also to sign applications to become beneficiary members thereof and take out contracts or certificates of insurance. He approached the defendant in error, Samuel T. Brachter, and asked him to join the order. Brachter told him that he wanted the insurance part of the order, and did not care for anything else; that his wife was pregnant and not in a condition to join the lodge, and he would not go into it. Stover told him that the condition of his wife made no difference; that they could sign applications, and he could give them a joint beneficiary certificate; that he (Brachter) could attend the first meeting of the lodge and be initiated, and his wife could attend later; that his initiation, so far as that requirement was concerned, would be all that was necessary to make the joint certificate good. Thereupon the Brachters signed the petition for a charter, and each of them signed a separate application for the purpose of procuring a joint beneficiary certificate. These applications were signed on the 24th day of October, 1898. The applicants both passed the proper medical examination, but on the application of Mrs. Brachter the fact of her pregnancy was noted. Her application was held up for a few days, when the medical examiner placed thereon the following: “Pregnancy terminated October 26th. She is all right. Confined Friday night. No complication.” The petition for a charter and these applications, with many others, were sent to the national secretary, at Topeka, Kan.; and on the 7th day of November following the certificate in question, with others, was made out and sent to Stover, the organizer, together with the charter. The lodge was instituted by him, and defendant Brachter was present, and duly initiated into the mysteries thereof. Mrs. Brachter was not present, and never was initiated. The officers of this local lodge were duly elected and qualified, and one W. S. Hayes became the local secretary of the organization. Thereafter Stover turned over all of the beneficiary certificates, except the one in question herein, to said secretary. The persons to whom they were issued paid their first assessments and registry fees to him, and he thereupon signed and delivered the certificates to the respective members entitled thereto. It appears that Stover was indebted to defendant Brachter for livery teams furnished him for driving while engaged in his work of organization, and Stover agreed with him to pay his assessments and registry fees. Immediately after the lodge was organized, Stover went to Nelson, Neb., without paying these fees and assessments for Brachter and his wife, or any of them, to the local secretary, and took with him the certificate in question. In a few days Brachter inquired of the secretary about his certificate, and was told that it was issued, but was not there for him. Nothing further was said or done about the matter, and on the 20th day of November Mrs. Brachter died. On the 22d, two days thereafter, Stover sent the certificate, together with the sum of $3.25 (the amount of the first assessment and registry fees therefor), by mail, to the local secretary. Shortly afterwards Brachter called upon that officer, who told him that the certificate and money had been received on the 22d inst, two days after Mrs. Brachter's death, and that he did not think he had a right to deliver the certificate to him, for the reason that Mrs. Brachter was dead. Brachter made no demand for it at that time, but shortly afterwards obtained possession thereof by writ of replevin issued from a justice court. The secretary made out a receipt to Stover for the money, and left it in his receipt book. The money was sent to the grand secretary, who refused to accept it, and returned it to the local secretary. About this time the president of the association visited Fairfield. The lodge was called together, and the question as to the payment of this claim was discussed, and it was voted that it ought to be paid. At that meeting L. B. Stiner, the attorney for Brachter, was asked to act as secretary by the president, and he did so. The books, papers, and money belonging to the office were turned over to him, and he thus obtained possession of the money order which contained the amount of the Brachter assessments and registry fees paid to the secretary by Stover, and which had been returned by the grand secretary. Stiner, while he had the books in his possession, delivered the receipt made out to Stover to the defendant in error Brachter. When his successor was elected he turned over all the books and papers then in his possession to him, and all of the money, except the money order which contained the amount of Brachter's assessments and fees; and this his successor refused to receive, so that Mr. Stiner has the money in his possession. There was some talk on the part of the president of a settlement of this claim, but no settlement was made, and Brachter was told by him to come to Topeka and attend a meeting of the board of directors that was shortly to be held there, and that the matter could be settled. Stiner attended such meeting for Brachter, but no settlement was effected, and the defendant in error thereupon commenced suit. The plaintiff in error answered, and, for its principal defense, alleged that the deceased, Lucinda Brachter, never was initiated in the local lodge at Fairfield, or any other local lodge of the order, that she never paid the secretary of the local lodge the registry fee and first assessment, as required by the by-laws, which were set forth in said answer in full; that she never became a member of the order, and that no beneficiary certificate was ever issued and delivered to her, as provided by the by-laws; that she never complied with the rules, regulations, and by-laws of the order, which were made and are a part of the benefit certificate made out for her, and that no liability attached thereon in her favor, or for the benefit of her surviving husband, and against this association, at her death; that the pretended certificate was never delivered to her by the local secretary or by any other person with the knowledge or consent of the association. Brachter's reply was a denial, and an allegation of the facts set forth herein, which it was claimed constituted a waiver or an estoppel on the part of the association to contest the claim set forth in the petition. A trial was had to a jury, and at the conclusion of the evidence both parties requested a peremptory instruction for a verdict. The court overruled the request of the association, refused all of the instructions tendered by it, sustained Brachter's request, and directed the jury to return a verdict in his favor for $1,070, which was accordingly done. The association excepted to each and all of the proceedings, filed its motion for a new trial, which was overruled, and prosecuted error to this court.

1. Plaintiff in error's petition contains numerous assignments of error, but the allegation that the court erred in directing the jury to return a verdict for the defendant in error is the only one which requires our attention. By giving this instruction the court found upon the evidence, as a matter of law, that the plaintiff in the court below was entitled to recover. If, upon fair consideration of the facts, as disclosed by the evidence and the record before us, we can sustain the finding and judgment of the trial court we ought to do so. If, on the other hand, we are convinced that ...